In April last year we posted a blog on the change in law on paternity leave focussing on the new right to Additional Paternity Leave (APL) which came into force on 6 April 2010. Under this, eligible employees whose children are due to be born on or after 3 April 2011 will have the right to take up to 6 months’ APL. The right will also apply in the case of adoptions where parents are notified of a match on or after 3 April 2011.

Since the implementation of the right to take APL, a question has arisen on whether an employer who offers an enhanced maternity pay package to its female employees should also offer enhanced paternity pay to those employees who take APL.

This issue has become particularly pressing since a recent ruling of the Court of Justice of the European Union (CJEU) in the Spanish case of Roca Álvarez v Sesa Start España ETT SA (ECJ Case C-104/09). Spanish law provides that female employees are entitled to time off during the course of the working day to feed a child under the age of 9 months. This right was originally introduced to facilitate breastfeeding by working mothers. However, this right was subsequently developed so as to allow fathers to take this leave provided both parents were employed. Therefore mothers who are employed were always entitled to this leave while fathers who also have employed status would only be so entitled if the child’s mother is also an employed person. This difference under the provision was held by the CJEU to amount to sex discrimination. In reaching this decision, the CJEU noted that the purpose of this leave was no longer strictly associated with breastfeeding but was actually a measure which reconciled family life and work for both parents. Therefore this purpose could be achieved by fathers taking the time off work as well as mothers. In addition, the fact that this leave could be taken by the father meant that this measure could not be regarded as being to ensure the protection of the special relationship between a mother and her child.

Should employers offer enhanced paternity pay during APL?

Currently, an employee who wishes to take APL will only be entitled to have additional paternity pay (“APP”) if he/she takes this leave when the relevant child’s mother would have been entitled to Statutory Maternity Pay (“SMP”). In such cases they would be entitled to APP until the relevant employee’s entitlement runs out but this would be at the same rate as SMP (£128.73 a week, from 6 April 2011) or 90% of normal weekly earnings, (if lower). Employers are not obliged to pay enhanced paternity pay during APL.

However, what happens if the employer pays enhanced maternity pay to its female employees? Is the employer required to also pay enhanced paternity pay during APL? In its response to consultation on the regulations on APL, the Government stated that its view was that it was not necessary for employers to offer enhanced paternity pay where they offer enhanced maternity pay. The argument is presumably that since APL can be taken by employees of either sex, the comparator for a man taking APL, is a woman taking APL rather than a woman on maternity leave. As the woman would also not be entitled to receive enhanced paternity pay, then any such claim by the man should be capable of being defeated.

Employers might take comfort from the fact that to date there have been no successful challenges for enhanced pay by men taking ordinary paternity leave in circumstances where their employer offers enhanced maternity pay. However, we consider that this view may not be entirely correct.

EU law recognises the special position of women taking maternity leave and has ruled that it is not discriminatory on grounds of sex to afford a woman a benefit while on maternity leave where no equivalent benefit is available to a man, since her special position whilst on maternity leave is not comparable to that of a man or a woman at work. UK law similarly protects women who are pregnant and/or on maternity leave by affording them special protection to protect their biological condition and/or also to protect the special relationship between a mother and her child.This is enshrined in the Equality Act where in s13(6) it states in a case of sex discrimination, “…no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth”.

If it has now become arguable that the benefit concerned (i.e. any enhanced maternity pay covering any period beginning 20 weeks after the birth) is given for the purpose of helping in the upbringing of the child, rather than specifically in connection with pregnancy or childbirth, then can a father who is not provided with enhanced paternity pay legitimately compare himself with a woman who is in receipt of enhanced maternity pay, during the proportion of maternity leave which she can now swap with her partner?

In light of the CJEU’s ruling in the Roca case, where employers offer enhanced maternity pay during Additional Maternity Leave (“AML”), employees might try to argue that as a proportion of maternity leave can be swapped for APL so that the father, rather than the mother, can look after the child, this leave can no longer be strictly associated with or linked to the special relationship between a mother and her child and the biological condition after pregnancy to care for her child. This argument is further substantiated by the fact that the APL regulations have been introduced partly as the Government described “to create increased opportunities and flexibility to allow parents to find an appropriate balance between work and family responsibilities through the introduction of an additional entitlement for families, allowing fathers to spend more time with their children”. It can be argued that APL satisfies an equivalent purpose. On this basis, there seems to be an argument that failure to pay men enhanced paternity pay during APL on an equivalent basis to any enhanced maternity payment made to female employees from 20 weeks after the birth is sex discriminatory.

It is unlikely that this argument will be applicable where an employer only offers enhanced maternity pay during the first 20 weeks of maternity leave after the birth. This is because, this leave comprises compulsory maternity leave where the female employee is not allowed to go back to work and APL cannot begin until 20 weeks after the child is born. Therefore, it is logical that this leave is still linked to protecting the biological condition of the mother after pregnancy and childbirth.

Given that this legislation has just come into force and will only impact the fathers of babies due on or after 3 April 2011 or were notified of a match for adoption on or after 3 April 2011, we will not know where the boundaries lie until a test case is brought before an Employment Tribunal. Therefore at present, the law is uncertain and there is no guidance from the Tribunals to assist us.

What should employers do?

As this has a greater chance of affecting those employers who offer enhanced maternity pay for a period which extends beyond the first 20 weeks after the birth, those employers who offer only shorter periods of enhanced maternity pay, may wish to wait to see if Tribunals offer guidance on the law in this area before deciding whatever to offer enhanced paternity pay.

Those employers offering more generous enhanced maternity pay schemes may wish to consider the following options:

  1. “Wait and see” – As we have already mentioned, given that this is a recent change, there is currently no specific guidance available from the Courts or Tribunals. Employers may therefore wish to wait to see what the Courts or Tribunal decide if and when a claim is brought. This approach does of course expose you to the risk that one of your own employees may bring a claim, and it may cause employee relations issues as fathers may become disgruntled when they are told, or discover, that the employer is not treating them as they are not entitled to the same benefits as their female counterparts.
  2. Offer some enhanced paternity benefits – In light of these changes, employers may wish to offer the some enhancement to paternity pay. It may not always be easy to decide over what period of APL you should afford these benefits. This will depend on the extent of the enhanced maternity benefits offered. Given that maternity leave can begin up to 11 weeks before birth, an employee could potentially have exhausted most of her enhanced maternity pay shortly after the birth, and in most cases before 20 weeks after the birth. The longer the period of enhanced maternity pay, the more it is arguable that the purpose of the pay is for child care rather than for the protection of the woman in pregnancy and childbirth. An employer who offers perhaps more than 5 months enhanced maternity pay may therefore consider offering fathers at least some enhanced paternity pay to avoid the risk of possible sex discrimination claims.
  3. Reduce the benefits given for AML – An alternative option would be to reduce the benefits which an employer gives for AML e.g. by deciding not to offer any enhanced benefits to employee during this period and limit it only to a maximum of 20 weeks. This will not be easy if the enhanced maternity scheme forms part of the employee’s contractual terms and conditions of employment since a unilateral variation of contract of this nature, without the employee’s consent would constitute a repudiatory breach entitling the employee to resign and claim constructive dismissal. Where, however, the scheme is entirely discretionary, it should be possible. This issue is not always straightforward and it is best to take legal advice on how best to achieve any reduction in benefits if this is the route chosen.

In making the decision about which option to choose, employers will need to assess what they are currently offering at the moment and whether they are willing to offer equal benefits, bearing in mind the cost of doing so. In these difficult economic times and given the current uncertainty of the law, it seems likely that most employers will wish to adopt the “wait and see” approach.